Petition for Writ of Certiorari — Richard Dwayne Blalock, Petitioner v. Oklahoma

APPENDIX A

ORDER DENYING FROM THE OKLAHOMA COURT OF CRIMINAL APPEALS

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*1051603376*

IN THE COURT OF CRIMINAL APPEALS

or ™ s™ or

RICHARD DWAYNE BLALOCK,

Petitioner,

v.

MAR - 2 2022

JOHN D. HADDEN

clerk

No. PC-2022-98

STATE OF OKLAHOMA,

Respondent.

ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF

Petitioner, pro se, appeals the denial of post-conviction relief by

the District Court of Tulsa County in Case No. CF-2009-3294. Before

the District Court, Petitioner asserted that the State lacked jurisdiction

to convict and punish him. See McOirt v. Oklahoma, 140 S.Ct. 2452

(2020). In State ex rel. Matloffv. Wallace, 2021 OK CR 21, 497 P.3d

686, cert, denied, 142 S.Ct. 757 (2022), this Court determined that the

United States Supreme Court decision in McGirt, because it is a new

procedural rule, is not retroactive and does not void final state

convictions. See Matloff, 2021 OK CR 21, ^ 27-28, 40, 497 P.3d at

691-92, 694.

The convictions in this matter were final before the July 9, 2020,

decision in McGirt, and the United States Supreme Courtis holding in

PC-2022-98, Richard Dwayne Blalock v. State of Oklahoma

McGirt does not apply. We decline Petitioner’s invitation to revisit our

holding in Matloff

Therefore, the District Court’s order denying post-conviction

reHef is AFFIRMED Pursuant to Rule 3.15, Rules of the Oklahoma

Court of Criminal Appeals, Title 22, Ch.18, App. (2022), the

MANDATE is ORDERED issued upon the delivery and filing of this

decision.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OP THIS COURT this

___ day of

, 2022.

SCOTT ROWLAND, Presiding Judge

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DAVID B. LEWIS, J

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APPENDIX B

ORDER DENYING FROM THE TULSA COUNTY DISTRICT COURT

*1051399712*

IN THE DISTRICT COURT IN AND FOR TULSA COUNTY

STATE OF OKLAHOMA

RICHARD DWYANE BLALOCK,

Petitioner,

vs.

STATE OF OKLAHOMA,

Respondent

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Certified copy to Dvfendcnt

|P|RI£T C|gUB^

CF-2009-3294

Judge Smith

JAN 1 1 2022

^aspaasas

ORDER DENYING PETITIONER’S APPLICATION

FOR POST-CONVICTION RELIEF

This matter came on for consideration on

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, 202lpursuant to the Application for

Post-Conviction Relief, for Appointment of Counsel, and an Evidentiary Hearing (“Application”)

filed by Petitioner Richard Blalock (“Petitioner”) on May 14,2021.

STATEMENT OF THE CASE

Petitioner Richard Blalock (“Petitioner”) pled guilty and was found guilty on August 24,

2009 in the District Court of Tulsa County, Case No. CF-2009-3294 of Count One (1): Shooting

with Intent to Kill, Count Two (2): Possession of a Firearm After Former Conviction of a Felony,

Count Three (3): Endeavoring to Manufacture Controlled Drugs, and Count Four (4): Unlawful

Possession of Controlled Drug. The District Court sentenced Petitioner to thirty-five (35) years in

the Department of Corrections for Count One, fifteen (15) years in the custody of the Department

of Corrections for Count Two, twenty-five (25) years in the custody of the Department of

Corrections, and fifteen (15) years in the custody of the Department of Corrections for Count Four

All counts were ordered to run concurrent and this sentence was ordered to run concurrent with

Tulsa County District Court Case CF-2009-2332. Although Petitioner was advised of his appeal

rights, he did not appeal this judgment and sentence. Petitioner has now filed his first application

for post-conviction relief, wherein he claims that the State did not have jurisdiction to prosecute

him, pursuant to McGirt v. Oklahoma, 140 S.Ct 2452, 2482-2483, 207 L.Ed.2d 985 (2020),

because he is “Indian” and the offense occurred in “Indian Country.”

FINDINGS OF FACTS

1. A representative of the Peoria Tribe of Indians of Oklahoma Enrollment Office would

testify that Petitioner was a citizen of the Peoria Tribe of Indians of Oklahoma on the dates

of the offenses July 4,2009 and July 6,2009. This representative would testify Petitioner

became enrolled as a citizen of the Peoria Tribe of Indians of Oklahoma on March 5, 1983.

2. A representative of the Peoria Tribe of Indians of Oklahoma Enrollment Office would

testify that Petitioner has some degree of Indian blood.

3. The Peoria Tribe of Indians of Oklahoma is a federally recognized tribe.

4. A representative of the Tulsa Police Department would testify that Petitioner committed

the offenses he was convicted of within Tulsa County.

5. A representative ofthe Muscogee Creek Nation or a representative of the Cherokee Nation,

or an expert witness testifying on Petitioner’s behalf, would testify that the location of the

offense Petitioner was convicted of in the above case occurred within the Muscogee Creek

Nation and/or the Cherokee Nation.

CONCLUSIONS OF LAW

I.

MCGIRT SHOULD NOT BE APPLIED RETROACTIVELY TO VOID A

CONVICTION THAT WAS FINAL WHEN MCGIRT WAS DECIDED.

A.

Application of Retroactivity Principles to Indian Country Claims

United States v. Cuch, 79 F.3d 987 (10th Cir. 1996) is the most relevant decision to

the specific issue, presented by this case, of the proper forum for prosecution after the

issuance of a new decision, regarding disestablishment or diminishment of an Indian

reservation. In Cuch, the Tenth Circuit considered the question of whether it should

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retroactively apply the Supreme Court’s decision in Hagen v. Utah, 510 U.S. 399 (1994),

that a reservation’s boundaries had.been diminished, to vacate convictions that were made

final prior to that decision. See Cuch, 79 F.3d at 989-90. The Tenth Circuit started by noting

"[t]he Supreme Court can and does limit the retroactive application of subject matter

jurisdiction rulings," citing the Court's decision in Gosa v. Mayden, 413 U:S. 665 (1973). Cuch

79F.3dat990. The Cuch court recounted the principles that underlie retroactivity analysis:

"finality and fundamental fairness." Cuch, 79 F.3d at 991. "A subset of the principle of finality

is the prospect that the invalidation of a final conviction could well mean that the guilty

will go unpunished due to the impracticability of charging and retrying the defendant after a

long interval of time." Id.

The Cuch court also considered that the issue of fairness to petitioners did not support

retroactivity: 'There is no question of guilt or innocence here" and these cases "involved

conduct made criminal by both state and federal law." Id. at 992. The petitioners do not

"assert any unfairness in the procedures by which they were charged, convicted, and

sentenced" and the Supreme Court's recent reservation boundaries decision does not "bring[]

into question the truth finding functions of the ... courts that prosecuted Indians for acts

committed within the historic boundaries of the ... Reservation." Id. Similarly, Cuch

distinguished cases where courts retroactively applied decisions holding the crime at issue

could not be constitutionally punished by any court or where the acts committed were not

actually criminalized by the statute of conviction. Id. at 993-94. There is not "complete

miscarriage of justice to these movants that would mandate or counsel retroactive

application of Hagen to invalidate these convictions." Id. at 994 (internal marks omitted).

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Rather, the question solely "focuses on where these Indian defendants should have been

tried for committing major crimes." Id. at 992. As a result, the court found "the

circumstances surrounding these cases make prospective application

of Hagen

unquestionably appropriate in the present context." Id. at 994.

Cuch also rejected the argument that a decision on reservation boundaries “did not effect a

‘change’ in federal law, but merely clarified what had been the law all along.” Id. The Cuch court

dismissed “the Blackstonian common law view that courts do no more than discover the law,”

noting that in Linkletter v. Walker, 381 U.S. 618 (1965), the Supreme Court recognized under

American law “such a rule was out of tune with actuality.” Id. at 994-95. In other words, “the

Supreme Court admitted that ‘[t]he past cannot always be erased by a new judicial declaration.’”

Id at 995 (quoting Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371,374 (1940)).

“While the jurisdictional nature of a holding makes the retroactivity question more critical, the

nature of the case alone does not dispense with the duty to decide whether the Court may in the

interest of justice make the rule prospective where the exigencies of the situation require such

application.” Cuch, 79 F.3d at 995. (citations and internal marks omitted). Instead, “the rule of law

is strengthened when courts, in their search for fairness, giving proper consideration to the facts

and applicable precedent, allow the law to be an instrument in obtaining a result that promotes

order, justice and equity.” Id. (citation and internal marks omitted).

B.

McGirt Shall Not Apply Retroactively to Void a Final State Conviction

In Stateexrel, District Attorney v. Wallace, 2021 OK CR 21, _P.3d_, 2021 WL 3578089,

the Oklahoma Court of Criminal Appeals (“OCCA”) recently stated that it found persuasive the

analysis and authorities provided by the United States Court of Appeals for the Tenth Circuit in

Cuch, in considering the “independent state law question of collateral non-retroactivity for

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McGirt.”1 Id at .*| 26. The OCCA also explained that new rules of criminal procedure “generally

do not apply retroactively to convictions that are final, with a few narrow exceptions.” Id. at | 8

(emphasis in original).

Related to its analysis of the McGirt decision under these principles, the Wallace court first

determined that the holding in McGirt only imposed procedural changes and was “clearly a

procedural ruling.” Id at ^ 27. Second, the Wallace court held that the “procedural rule announced

in McGirt was new.” Id. at 128. Third, the court explained in detail in Wallace that the OCCA’s

“independent exercise of authority to impose remedial constraints under state law on the collateral

impact of McGirt and post-McGirt litigation is consistent with both the text of the opinion and the

Supreme Court’s apparent intent.” Id at ^ 33. Ultimately, the OCCA held that “McGirt and our

post-McGirt reservation rulings shall not apply retroactively to void a conviction that was final

when McGirt was decided.”2 Id. at f 15 See

6 and 40.

As discussed above, the Tulsa County District Court found Petitioner guilty August 24,

2009 and sentenced him accordingly. Since Petitioner did not appeal this judgment and sentence

within the ten-day time limit, his conviction became final on September 3,2009. See O.S. T. 22,

Ch. 18, App., Rule 2.1.

Since Petitioner’s conviction was final long prior to the July 9, 2020 decision in McGirt,

this Court holds that the McGirt decision does not apply retroactively in Petitioner’s state post­

conviction proceeding to void his final conviction. See Wallace, 2021 OK CR 21, at

6, 40.

Accordingly, the Court also denies Petitioner’s Application on this basis.

1 McGirt v. Oklahoma, 140 S.Ct. 2452 (2020).

2 Teague v. Lane, 489 U.S. 288,295 (1989) defines “a final conviction as one where judgment

was rendered, the availability of appeal exhausted, and the time to petition for certiorari had

elapsed).” Wallace, 2021 OK 21, at 12, n.l.

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